Ineos Upstream Limited & Ors v Joseph Boyd & Anor
[2023] EWHC 1756 (Ch)
Eva Green v White Lantern Film (Britannica) Limited & Anor
26 May 2023
[2023] EWHC 1391 (Ch)
High Court
Ms Green won a case against two companies. The judge said the companies behaved badly, so Ms Green gets all her legal costs paid, even though some evidence arrived late. The companies have to pay a big chunk of those costs now, even though they are arguing about it.
Key Facts
- •Consequentials hearing following trial judgment ([2023] EWHC 930 (Ch)) where Ms Green won against White Lantern Film and SMC Specialty Finance LLC.
- •Defendants' counterclaims in tort dismissed.
- •Ms Green made a Part 36 offer on 28 July 2022 to settle for $900,000, which was not accepted.
- •Late disclosure of evidence from Mr Merrifield and Ms Green's communications with Tavistock Wood.
- •Dispute over whether pre-18 August 2022 costs should be assessed on a standard or indemnity basis.
- •Dispute over allocation of costs between White Lantern and SMC.
- •Application for permission to appeal not made to the trial judge.
Legal Principles
Test for indemnity costs: Whether there is something in the conduct of the action or the circumstances of the case which takes the case out of the norm.
Excelsior Commercial & Industrial Holdings Limited v Salisbury Hamer Aspden & Johnson [2002] EWCA Civ 879
Factors to consider for indemnity costs (as per Tomlinson J in Three Rivers): unreasonable conduct, unreasonable allegations, failure to make reasonable offers, conduct of the litigation.
Three Rivers District Council v Bank of England [2006] EWHC 816 (Comm)
Part 36: Consequences of rejecting a Part 36 offer, including indemnity costs and additional payments.
CPR Part 36.17
Court's discretion in allocating costs between multiple defendants (CPR 44.2).
CPR 44.2
Part 36 costs consequences; limited discretion to depart from indemnity costs; burden on the party seeking to depart is high.
Smith v Trafford Housing Trust [2012] EWHC 3320 (Ch); Webb v Liverpool Women's NHS Foundation Trust [2016] EWCA Civ 365
Applying for permission to appeal to the lower court is advisable before proceeding to the Court of Appeal.
CPR 52.3.6; Re T (A Child) [2002] EWCA Civ 1736
Outcomes
Ms Green awarded indemnity costs for the period before and after 18 August 2022.
Defendants' dishonest evidence, prolix pleadings, unreasonable allegations, and aggressive pursuit of the case. Part 36 offer rejection.
Defendants jointly and severally liable for costs; no allocation of costs between White Lantern and SMC.
SMC controlled and funded the litigation; risk of White Lantern insolvency.
No deduction to Ms Green's costs for Merrifield's late disclosure.
Merrifield was effectively on the Defendants' side for disclosure; no deliberate concealment; Part 36 regime.
Ms Green's costs reduced to reflect her late disclosure of communications with Tavistock Wood.
Late disclosure caused a trial adjournment; court's disapproval of Ms Green's conduct.
Interim payment of £1.2 million on account of costs awarded to Ms Green.
Indemnity costs assessment; estimation of likely recovery with margin for error; considering the costs incurred and the difficulties enforcing orders against the defendants.
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